ZG (Afghanistan) v Secretary of State for the Home Department [2015] EWCA Civ 866

Case No C4/2014/1211[2015] EWCA Civ 866
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MS D GILL)
Venue Royal Courts of JusticeDate Thursday, 9th July 2015
Strand
London, WC2
B E F O R E:
LORD JUSTICE SULLIVAN
ZG (AFGHANISTAN)
Claimant/Applicant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant/Respondent
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Ms S Naik (instructed by Duncan Lewis) appeared on behalf of the Applicant
J U D G M E N T
Between
ZG (Afghanistan)AppellantSecretary of State for the Home DepartmentRespondent

LORD JUSTICE SULLIVAN:

[1]This is a renewed application for permission to appeal against the order dated 6th November 2013 of Ms Gill, sitting as a Deputy Judge of the High Court, dismissing the appellant's applications for judicial review of the lawfulness of two decisions of the respondent in April and September 2012 to remove the appellant to Afghanistan. The facts are set out in Ms Gill's judgment [2013] EWHC 3365 (Admin).[2]In summary, the appellant arrived in the United Kingdom as an unaccompanied 16-year-old on 31st October 2006. He claimed asylum shortly thereafter. His claim was refused on 3rd January 2007 but he had no right of appeal against that decision because he was given discretionary leave to remain until December 2007. He made a second claim for asylum in February 2008, a couple of months out of time. That second claim for asylum was refused. He appealed against that refusal and his appeal was dismissed on 13th July 2010.[3]So the position is that by the time the removal decisions, which are the subject of the challenges in these two claims for judicial review, were made in April and September 2012, the time for any appeal against and/or judicial review of the decisions in 2007 and 2010 had long expired.[4]The basis of the claims for judicial review, as they were explained in the claim forms, was that the 2007 refusal of asylum was unlawful because the appellant was an unaccompanied child who could not be expected to relocate to Kabul as an unaccompanied minor and in any event because it had been accepted that the appellant's father had been killed by the Taliban. So it was said that the Secretary of State's failure to deal lawfully with the appellant's asylum claims in 2007 and 2010 meant that there was historic injustice and, it was said in the claim form:
"He [that is the appellant] is entitled to corrective leave to remedy the historic errors by the Secretary of State."
[5]In the light of the recent decision of the Supreme Court in TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, Ms Naik very properly accepts that that submission, that is to say that the appellant is entitled to some form of corrective remedy, if there has been historic injustice is no longer pursued. Instead, Ms Naik now submits, principally through her renewal statement, that the question now is whether the matter should be remitted to the Secretary of State so that she can consider the exercise of her discretion in the light of the past history of this case. Ms Naik submits that TN and MA and in particular paragraph 72 of Lord Toulson's judgment leaves open the question whether there is still a discretion on the part of the Secretary of State to take account of past injustice when deciding not whether to grant asylum but when deciding whether or not to grant some form of discretionary leave. I am perfectly content to proceed on the basis that there is that window of opportunity in an appropriate case. The question is whether this is an appropriate case.[6]It seems to me that there are two fundamental obstacles to the submission that this is an appropriate case, each of which is fatal to the application. The first is this. It is an essential plank of the argument that there has been a historic injustice, that the 2007 and 2010 refusals of asylum were unlawful. Indeed, a declaration that the 2007 decision was unlawful was one of the claims in the proceedings. However, the challenge to the lawfulness of those decisions is hopelessly out of time, rather it is more accurate to say when it was made in 2012 it was hopelessly out of time, as mentioned by the Deputy Judge in paragraph 35 of her judgment. She recognised, of course, there could be no statutory appeal against the 2007 decision but judicial review was always available and there was a statutory appeal in 2010, at the end of which the appellant's appeal rights were exhausted. It seems to me therefore it would be wholly inappropriate to allow this case to proceed in effect as a vehicle for examining the lawfulness of decisions taken in 2007 and 2010, many years out of time.[7]That would be sufficient to dispose of this renewed application, but there is a second fundamental objection and it is this. The emphasis of the claim has now shifted from an entitlement to some form of corrective relief, to a contention that the Secretary of State should consider whether or not to exercise her discretion to give leave. However, that matter is addressed in paragraph 19 of the judgment, in which the Deputy

Judge said:

"Mr. Chapman informed me that in the instant case the defendant has already decided (para 42 of his skeleton argument) that the corrective principle does not require the grant of DLR to the claimant, whereas Ms. Naik submitted that the defendant should be required to consider whether it does, a submission which ignores the fact that the defendant has already made that decision."
The judge then went on to cite a passage from the judgment of Laws LJ in AA v Secretary of State for the Home Department [2012] EWCA 1643 and said in paragraph 20 that the question is whether the defendant's failure to comply with the duty to endeavour to trace the claimant's family in 2006 and 2007 before the first refusal has led to such prejudice, that it would now be so unfair to remove the claimant that no reasonable Secretary of State would do so, ie the application of the Wednesbury test.[8]In paragraph 42 of the Secretary of State's skeleton argument it was said that:
"Here the challenge is to the Secretary of State's exercise of discretion. She has concluded in her discretion the corrective principle does not mandate the grant of discretionary leave to this claimant. It is apparent that decision may be impugned on public law grounds."
Then AA is referred to. Ms Naik submits that there is no decision as such and there are no reasons given for any Decision. But that, it seems to me, is readily understandable given this was not the primary focus of the application when it originated. When it originated the application was based on the premiss that if there was a historic injustice as alleged, then there was a duty upon the Secretary of State to grant some form of corrective relief. In fact at the earlier stage it was contended there was a duty to grant refugee status.[9]So the focus of this case has shifted, understandably, in the light of the decision of the Supreme Court in TN and MA but it is readily understandable that this question was dealt with relatively briefly, prior to the Supreme Court's decision, as I say, when the focus of the claim was somewhat different.[10]In any event, there is a plain assertion that the Secretary of State has considered exercise of discretion. As a matter of common sense, given the number of times in which this matter has been to court by way of applications for judicial review and interim relief and so forth to prevent removal directions the proposition that there had not been consideration of that discretion would be somewhat unrealistic in any event.[11]So for those two reasons(a) that in essence this is a challenge to the lawfulness of decisions in 2007 and 2010, which is way out of time and(b) that in so far as that it contends that the Secretary of State should exercise a discretion, there is nothing to disbelieve the argument on behalf of the Secretary of State, the consideration has been given as to whether or not to exercise a discretion, and a decision has been taken that it is not necessary in this case and that decision cannot sensibly be said to be Wednesbury unreasonable. For those two reasons this renewed application for permission to appeal must be refused.